Council Candidate Weekly Question: Lawsuits against the City

This is the sixth of the Vanguard’s series of 11 questions. Every Monday until the week before election, we’ll have a new question and answers. Answers are limited to 250 words.

Question 6: it seems like every project has triggered a lawsuit and while that may seem like an exaggeration we have recently seen lawsuits for Nishi 1.0, the Hotel Conference Center, the Marriott, the Hyatt House, Trackside, Nishi 2.0 and now Lincoln40. What do you think of these lawsuits and as councilmember what strategy will you undertake to either avoid or discourage them?

Dan Carson

The lawsuits filed in recent years to block projects that have been duly approved by the Davis City Council are frustrating, frivolous, and harmful to our community. They have stifled promising opportunities for economic development and badly needed city revenues and aggravated a housing crisis so severe that some students are now living on our streets in cars.

However, there is no mechanism to constrain the filing of such cases that does not intrude on our constitutional rights as citizens to access our court system and provide the checks and balances so necessary and important for our system of government. Remember–our city itself may have to use the courts to protect our interests someday.

I myself supported efforts by West Davis Neighbors in 2003 to protect valuable open space and agricultural research fields and require UC Davis to mitigate the impacts of campus growth on our community. Although we ultimately lost the case, the lawsuit served the best interests of our community by fighting for an environmentally superior alternative to campus growth plans that would also have provided the university every single unit of housing it wanted.

We should continue the approach taken by the City Council in recent years of aggressively defending the city’s justifiable decisions to provide critically needed housing and to pursue vitally needed economic development projects that provide jobs and address the city’s serious fiscal problems. And we should take a hard line against cash settlements of such cases that, inevitably, just invite even more litigation.

Linda Deos

I am and always will be a strong defender of the 7th Amendment to the Bill of Rights (right to a jury trial) and in due process of law. We are a country that believes in rule of law – not rule of power by individuals (e.g. a dictator or monarch). By trade I’m a civil litigation attorney. I was trained in the art of resolving disputes through lawsuits. However, due to the expense, uncertainty, and time it takes to bring a case to conclusion, I only file lawsuits as a last resort. Instead, I look to settle conflicts through other dispute resolution methods; e.g., mediation or arbitration. I have even become a volunteer mediator on ADA disability access cases filed in federal court.

I believe in representational democracy and support direct democracy in situations such as Measure J/R votes. Therefore, I’m extremely troubled by these lawsuits seeking to overturn many of the land use decisions made by our City Council. The City has prevailed in these lawsuits because its position is solidly grounded in the law. Winning, however, comes at a cost. A cost not only in terms of money spent to defend the lawsuit, but also the cost of lost revenues due to delays caused by the litigation and appeals.

My strategy would be to continue assuring we have solid legal grounds for each land use decision. In the event a lawsuit is filed, and the City prevails, I would seek costs and attorneys from the Plaintiff(s).

Gloria Partida

Many lawsuits are the manifestation of last resort frustration from parties that have not been heard and often lack equitable access to power within a system. While the lawsuits brought forth here can hardly be attributed to a population of people that lack access to power, it is always wrong to dismiss community concerns.

Truly we are lucky to have as engaged a citizenry as we do. Leading a community that is so well-informed requires sensitive but strong decision makers that can set and communicate clear expectations.

While it is everyone’s right to be heard in court it is also important to mediate impasses as much as possible so as to avoid the burden of cost, both in time and money, associated with lawsuits. Setting expectations around zoning is critical.

Zoning that is perceived as arbitrary and opportunistic will lead to the feeling of lack of transparency and inequity. New homebuyers should be given rudimentary information about their community. People must understand that communities require a degree of dynamic change to stay relevant and solvent.

Finally, we must ask, what are the trigger points? We have now a wealth of situations that have triggered lawsuits – can we mine these for common problems? Can we counteract influences leading to these actions? I believe it is always valuable to approach solutions by first finding the cause of the problem.

Larry Guenther

I think that the lawsuits highlight a need for a more collaborative and inclusive planning process.

It may seem that “every project has triggered a lawsuit,” but compliant projects have not, and several are already built. The projects that triggered lawsuits have required amendments to land-use documents: General Plan, Specific Plans, zoning.

The way to avoid lawsuits is to follow the rules. Our land-use documents are forward-thinking and people-oriented, but they are due for updating. New plans need to be developed through a collaborative process to ensure that the community is in agreement with the policies and thus supportive of projects that follow them.

In the meantime, amendments should be rare and should be undertaken with the collaboration of the affected community. Although a collaborative process takes time, it takes less time than litigation. Inherently, collaboration brings people together, while litigation polarizes.

The purpose of land-use policy is to set expectations for developers, land owners, and the community. Currently we have a mismatch between community expectations and projects that are being brought forward. This mismatch is the source of conflict.

Mary Jo Bryan

Consistently the people filing the individual lawsuit(s) have argued that our City government (staff and Council) have taken illegal short cuts when following either California Laws or City of Davis Laws or both. Our City planning processes for complying with the Law(s) are supposed to be clear, open and transparent. Experience says they are not.

I have personal experience with those processes. I fought for two years to save the Families First Campus from being demolished but in the end, the City Council voted differently.

My choices were to start a referendum process or file a lawsuit. Both avenues would be long, expensive and require a great deal of City resources.

For me the issue was greater than one project. I began to consider the larger picture. The proposed projects and the city council actions reflect a shift in direction for Davis. Almost all project applications have required amendments to the General Plan for height and density and land use zoning changes not consistent with our current General Plan. The consequence is the General Plan and Zoning Code no longer serve as a reliable planning guide for the future of Davis. It is time for citizen-based update of our General Plan.

As a member of the city council I would propose a citywide process that results in a plan and vision for city’s next 20 years. Our General Plan needs to look forward and include land use and zoning designations for housing, including student housing, commercial development and industrial parks. Unless our General Plan is consistent with the agreed expectation of the community, lawsuits will be the norm for future developments.

Eric Gudz

While I do appreciate that we have so many active and engaged citizens within our political process, I strongly believe that we need to actively discourage our fellow neighbors from resorting to litigation as a means to solve their grievances with other fellow neighbors of our great community. As representatives of our community and entrusted with the duties of building community consensus and navigating complex policymaking with our bearings intact, we as councilmembers must actively explore all options that bring us closer together. The litigious route has a tendency to create further divide between those within the community that are privileged with access to good legal counsel and those who are not, and it is a symptom of one of the largest issues in Davis: the incongruency of our land use and zoning to the realities of the housing crisis today.

My strategy would be first and foremost to validate and actively listen to the concerns brought about by those who seek to challenge these official city decisions and actively engage with their perspective. Next, I would do my absolute best to try and understand the context of the issue from the perspective presented to me, and I would seek to diagnose the acute policy symptoms presented and identify the larger policy issues that can address the symptoms presented. I would then offer these explanations and listen further to determine their relevance to the issue. Finally I would seek further refinement and determine whether the issues presented to me would be best addressed in a council action item or in a larger policy planning process. Collective ownership of the shared challenges we all bear as citizens of Davis is key to our future vitality.

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

The lawsuits filed in recent years to block projects that have been duly approved by the Davis City Council are frustrating, frivolous, and harmful to our community. … However, there is no mechanism to constrain the filing of such cases that does not intrude on our constitutional rights as citizens to access our court system and provide the checks and balances so necessary and important for our system of government.

Eric’s answer is probably the best. What we have to realize is that lawsuits are hurting people. They are hurting students looking for housing and unless someone figures out a way to avoid them, they are going to continue to do so.

Craig, I agree with you that lawsuits are hurting both the community and individual people in the community. With that said, there are several ways to avoid the lawsuits. First, the City can consistently follow the dictates of California laws and City of Davis laws/regulations. Second, the City can clean up its messy/arbitrary processes where they exist. If those two steps are taken by the City (the in-process General Plan Update, with follow-on updates to the Zoning Code will go a long way toward that) then the legal grounds for lawsuits will effectively evaporate. As Einstein once said the definition of insanity is doing the same thing over and over again and expecting a different outcome. Wishing that lawsuits will go away without fixing the root cause problems in our General Plan and Zoning Code is indeed insane.

“Wishing that lawsuits will go away without fixing the root cause problems in our General Plan and Zoning Code is indeed insane.”

I have to disagree with you Matt. I think the root cause is that there are people in the community for whom the council is acting in ways they oppose and they are using the lawsuit as a vehicle to either stop or increase the cost of development.

David, you and I will have to agree to disagree. Exhibit A of my argument resides underneath the plexiglass on the counter of the Community Development Department in City Hall … the Zoning Map of the City. Although I don’t have the acreage totals to know the exact percentages, my estimate is that at least half of the acres within the City Limits of Davis are designated with the letters PD. That means that integrity of the Residential, Commercial, Industrial or Multi-Use Zoning of the parcel in question has not been adhered to … bargained away during the development process. Bottom-lie, we have followed a pattern of land use decision-making behavior that adheres to no standards … everything is subject to negotiation … everything is effectively for sale if the price is right.

As Mark West has very correctly pointed out in past posts, we once had a well-thought-out coherent General Plan for a resilient community. Unfortunately, we did not stick to that Plan’s principles. We did not enforce/follow our own rules.

The end result is the situation we currently have,where everything is subject to negotiation. Project applicants and staff negotiate behind closed doors … not good. Some members of the community negotiate using the legal system … not good. In the end we are all losers as a result.

David, look again at your list of lawsuits. The “drivers” of those lawsuits have been anything but homogeneous. The Marriott lawsuit was by a Burrowing Owl Preservation Group. The Hyatt House lawsuit by a competitor hotel trying to squash competition for his existing hotel. The Hoel Conference Center and Nishi 1.0 and Nishi 2.0 and Lincoln 40 are indeed similar for rather obvious reasons. I’m not aware of the Trackside law suit particulars, but as I pointed out to Howard in my comment yesterday the Davis Downtown and. Traditional Residential Neighborhoods. Design Guidelines document internal contradictions between its own individual sections. The Guidelines document has inconsistencies with the Municipal Code’s Zoning section. The Zoning section has inconsistencies with the General Plan. That is a lawsuit waiting to happen.

You have omitted the two Water legal kerfufels. One of which resulted in the City’s creation of the WAC, and the other which did make it to court. The “drivers” of those two were substantially different from your list.

With that said, I think your argument is a logical fallacy. It appears to be built on a platform of ad hominem antipathy on your part for the people carrying the message rather than looking at each message on its own merits.

In closing, you yourself haven’t answered the most important part of your own question … specifically, “as councilmember what strategy will you undertake to either avoid or discourage them?”

First, the City can consistently followed(s) the dictates of California laws and City of Davis laws/regulations. Second, the City can clean up its messy/arbitrary processes where they exist.

Unless things have changed recently, Davis does follow the dictates, both in the letter and the spirit…did on my shift…

As to first, the City has pretty consistently follow the dictates of California laws and City of Davis laws/regulations. Second, the City can clean up its messy/arbitrary processes where they exist. … I don’t see much evidence of that, except the ill-advised decision of a key staff member to do a mitigated neg dec, rather than a focused EIR on a project… one later called into a lawsuit… I advised for the latter…

Now back on “messy/arbitrary processes”… there are a bunch of CC candidates, and several posters who actually advovate for that… code word: “collaboration”… WTF does that mean? Capitulation, under threat of lawsuit? “Negotiation”, where if someone doesn’t ‘get their way’, there is a lawsuit? Those sound “messy and arbitrary”… just my view…

“except the ill-advised decision of a key staff member to do a mitigated neg dec, rather than a focused EIR on a project… one later called into a lawsuit”

I doubt that doing the focused EIR would have avoided the lawsuit, so your solution would have only worked to make the project more expensive (by the cost differential between the Neg Dec and fEIR). EIRs are expected for large subdivisions, such as the one the City performed for the South Davis Specific Plan when the City decided to develop south Davis. Doing an EIR on an individual project basis when a Neg Dec is sufficient is wasteful of staff time and community resources, just as are the frivolous lawsuits.

Howard, the Davis Downtown and. Traditional Residential Neighborhoods. Design Guidelines document internal contradictions between its own individual sections. The Guidelines document has inconsistencies with the Municipal Code’s Zoning section. The Zoning section has inconsistencies with the General Plan.

Under the provisions of California Law, when a General Plan is updated, the Zoning Code must be updated in order to be consistent with the General Plan. That was never done in Davis after the last General Plan Update.

Then to add insult to injury, the vast majority of project application considerations simply threw any existing zoning out the window and negotiated whatever PD (Planned Development) terms and conditions that came out of the meat grinder that has been our planning process for a very long time.

It is what it is. We can either continue on as we have, or we can recognize the inherent problems such a fluid situation causes, and bring some order to the chaos.

Mark, the amount of extra cost between a mitigated negative declaration and a focused EIR is minuscule when compared to the cost of the project. It might add 90 days to the up-front project timeline … again a minuscule addition.

That difference is comparable to the difference between calculating and submitting your own Income Tax Return or having H&R Block calculate and submit it for you. The California Environmental Quality Act (CEQA) gives specific deference to a focused EIR that it does not give to a Mitigated Negative Declaration. The bottom-line of that specific deference is risk mitigation for the applicant and the jurisdiction. The City chose not to mitigate its risk, just as an individual Taxpayer may choose not to mitigate his/her risk by using H&R Block. It is a choice. Both Howard and I believe it was the wrong choice in the specific case Howard has referenced.

To torture your metaphor, it wasn’t wearing a belt and suspenders at the same time … it was the choice between wearing either a belt or suspenders.

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